Amusement Park Liability - What You Need to Know

By Pam Menaker of Clifford Law Offices PC posted in Miscellaneous on Monday, July 16, 2018.

With summer upon us, that means that amusement park rides are in full swing. But with that sometimes comes word of horrible incidents that injure or even kill unsuspecting ride goers who went to the park for some fun. That just occurred in mid-June when a roller coaster derailed in Daytona Beach, Florida, leaving six people injured. Two riders reportedly fell about 34 feet and four more who were dangling following the malfunction were sent to area hospitals. The Florida Department of Agriculture and Consumer Services conducted an investigation into the matter at the Daytona Beach Boardwalk.

The International Association for Amusement Parks estimates some 335 million people will visit an amusement park each year, with an estimated 30,000 injuries linked to amusement parks in 2016.

1. Do you think consumers should be concerned about ride safety at theme parks? What about traveling carnivals rides?

Yes, consumers should be very concerned about amusement park ride safety. As cautious as one may be, the large volume and consistent of use of these rides does not necessarily allow for routine safety checks. Instead, amusement park owners and operators generally check them periodically or when there is a breakdown, which may be too late. Amusement parks are governed by laws in most states, but the ability of each state to monitor if these laws are being followed is hampered by a state's financial and personnel constraints. That may leave many amusement parks to self-monitor and, of course, these are businesses that are trying to make a profit. Another point to consider is post-installation safety whereby "pinch points" or "zones of danger" are not readily apparent from the drawing board, but instead after thorough testing of the ride itself before it is open to the public, these design flaws become apparent. Amusement park owners and operators should not hype the opening of a new ride before fulfilling their obligations to thoroughly test it for possible flaws not seen in the diagrams and plans.

Traveling carnival rides are even more difficult to monitor obviously because of their transient nature. Also, the fact they are constantly being set up and broken down then moved to another location, perhaps even another state without adequate and proper inspection, makes it more difficult to monitor the safety of these rides. Keep in mind, too, that these rides are operating from the moment they are set up until they stop without adequate inspection during what could be up to two weeks of constant use. The U.S. Consumer Product Safety Commission (CPSC) has issued some national regulations governing mobile amusement rides, but it does not have inspection or enforcement authority. It merely investigates and urges safety regulations. According to the CPSC, "While CPSC has jurisdiction over the mobile rides that move from place to place, states and local communities are responsible for inspections and oversight. State safety inspectors will work with CPSC to ensure the rides operate safely." That's because of the heavy lobbying that led to Congress limiting the CPSC's authority to traveling carnivals in 1981 with the so-called "roller coaster loophole." State laws also oftentimes are subject to the industry's lobbying efforts in the state legislatures.

The following states have no state agency with jurisdiction to inspect rides: Alabama, Mississippi, Nevada, Montana, Wyoming and Utah. The operators' insurance companies may be the only authority that requires mere annual inspections with the insurers' setting the criteria.

Other states may have minimal regulation or merely require amusement park operators to carry minimal levels of insurance. Of course, some states update their laws such as South Carolina, particularly following a terrible incident. Following a tragic amusement ride incident there, South Carolina requires "amusement devices" to be inspected annually. (S.C. Code 41-18-10 (2018)).

Utah, on the other hand, has adopted the Amusement Park Rider Responsibility Law that has been in effect since 1998, which provides that "The actions of any rider of sufficient age and knowledge to assume the inherent risks of an amusement ride ..." Utah Code Ann. §78B-4-507 (2008). This type of law is particularly disturbing because visitors have no way of knowing the maintenance and upkeep of these type of complicated vehicles that can project people reportedly with unexpectedly high G-forces. Following a teenager suffering a heart attack at Walt Disney World in Florida, a central Florida television station along with the publication Florida Today conducted their own tests on some of the popular rides at the theme park. According to a story reported by the Society of Professional Journalists, "Reporters rode all of the area's biggest attractions armed with a device used to measure G-forces from all the angles that a twisting, turning roller coaster can throw at a rider. It found strong forces that experts consider safe -- assuming riders are in good health." How does one know if she or she is healthy enough for that given ride? See article "Public records unearth dangers with carnival rides."

Florida is somewhat of an anomaly in that state inspectors are responsible for examining rides except for parks that employ more than 1,000 people. Those parks, like Walt Disney World, Universal and Sea World, are required to hire their own full-time inspectors.

Fixed-site parks such as Disneyland and Six Flags theme parks are not regulated by federal law. The federal government should consider setting uniform standards for rides as well as mandatory inspections at regular intervals and training protocols for inspectors as well as for those who operate the rides.

2. Are lawsuits stemming from harm to patrons at theme parks/carnivals on the rise? Do you foresee an uptick in the future?

Because some states don't require the reporting of an injury at an amusement park to state or local authorities, it is difficult to determine the exact number of accidents or injuries at theme parks and carnivals. (Fla.Stat.Ann. §616.242 (2016)).

The number of injuries occurring nationwide associated with amusement parks is not yet known for last year, according to the Consumer Product Safety Commission (CPSC); however, it has reported that it is aware of 22 deaths nationwide associated with amusement attractions since 2010. The number of incidents also would have to be compared to the number of visitors to the parks, and there is no single agency assigned to keep track of such statistics.

The amusement park industry has a large lobbying presence in Washington, D.C., and to date has successfully lobbied against federal oversight. There is no one source that reports all fixed-site or mobile carnival ride injuries, but a study published in the journal, Clinical Pediatrics, in 2013 where researchers at Nationwide Children's Hospital in Columbus, Ohio, analyzed emergency-room visits between 1990 and 2010 related to amusement rides. It was reported that in that 20-year period there was an average of 4,423 such visits each year, with an annual injury rate of 6.24 injuries per 100,000 children. About 1.5 percent of injuries required hospitalization. It was reported that the CPSC estimates there were 4,800 injuries from mobile amusement rides in 2015, up from 4,500 in 2014 and 4,300 in 2013, according to CPSC spokeswoman Patty Davis. The sad part is that the public generally becomes aware and more concerned after a tragic incident occurs. What is necessary is constant diligence.

3. Describe a typical suit in terms of claims and damages. Are these claims generally grounded in product liability, negligence, contract, etc.

Certainly the lawsuit depends upon the facts of the particular case. A case can be grounded in both negligence and product liability against the amusement park owners and operators and even the manufacturer or assembler of the ride itself. The amusement park is responsible for the actions of its employees. These defendants may be negligent in not being reasonably careful or in failing to take reasonable safety precautions including the posting of signs to inform the users of the risks involved. Training ride operators and maintaining the equipment also is part of the business of running an amusement park or rides because even one faulty part or the faulty design of a ride can cause serious injury or death. Premises liability also may come into play if the park itself is unsafe for its users. Amusement park owners must exercise reasonable care in the construction, management and maintenance of all grounds and the facilities for visitors.

4. How significant in these cases is the determination as to appropriate standard of care for the defendant?

It can be argued that amusement park rides can be considered "'common carriers" that invokes a legal doctrine that would impose tougher liability standards in court. That means that the operator must use the highest degree of care for passengers. Illinois state statute governs safety inspections of traveling or temporary carnivals as well as of fixed rides like Six Flags through the creation of a five-member board appointed by the governor. 430 ILCS 85/2-3 (2015). Illinois law has long deemed amusement park ride operators common carriers who owe the highest degree of care to their passengers. Riders in some states have sued in contract stating that in buying a ticket, a contractual relationship was formed between the two parties. The amusement park will argue that they printed a disclaimer on the ticket that absolves them of liability; however, aside from people not reading these disclaimers and the vague, all-inclusive language it contains, judges generally will examine the facts to determine if the disclaimer is unreasonable under the particular facts. Generally, though, negligence is the standard by which most lawyers sue in state court on behalf of plaintiffs. This may allow damages for one's injury, as well as lost wages, medical bills and future medical care, pain and suffering and perhaps even emotional distress caused by a horrific incident.

5. What role do expert witnesses play in these suits? What type of experts are needed?

As in many personal injury and wrongful death cases, experts play a critical role in demonstrating that the defendant deviated from a reasonable standard of care. In the case of amusement park rides, mechanical and aerospace engineers often are necessary to examine the ride in question and to determine what measures could have or should have been taken to avoid the plaintiff's injuries or even death. Oftentimes, it can be something as simple as an additional protection or restraint for riders' necks, back, feet or hands affixed to each cab of the ride that might amount to a relatively minimal amount of money that could save people's limbs or lives. Safety experts who have experience with amusement park rides also should be consulted as well as biomechanical engineers and structural engineers.

6. How do these suits generally fare? Are they more likely to result in dismissal or settlement compared with other tort/contract claims?

These lawsuits are like any other tort claim. A lawyer must prepare all cases as if it will be tried before a jury. A jury of one's peers will provide the justice that the courts will allow. Generally, as is true of approximately 95 percent of all civil lawsuits, cases settle in the 11th hour. Because most plaintiffs do not enjoy re-living the experience in a courtroom setting, if the settlement amount is fair and just, with the guarantee of getting the damages check within 30 or 60 days, then it is appropriate to settle to avoid a costly trial and perhaps even an appeal.

7. Are traditional defenses such as assumption of risk or waiver, likely to control? If not, why not?

Assumption of risk or waiver generally are invoked by amusement park owners and operators in these cases, but they are not blanket defenses. First, they do not control when a child is involved. Even if an adult is injured or killed, if a ride was negligently maintained or safety inspections were not conducted, a rider cannot have assumed the risk because there was no way of knowing that information. The effect of assumption of the risk will vary from state to state and can be quite different, so state laws must be checked. What may be considered assumption of risk in one state that is pro business may not be considered assumption of risk in states like California that are pro-consumer, with many variations in-between.

8. Do these suits suggest a lack of safety regulation in these areas? Is more needed in terms of regulatory safety?

In some states, a lack of safety regulations is apparent or the need for more diligent reporting of accidents so that consumers can be informed. The real problem is the patchwork of laws that governing 50 states and even the inconsistent enforcement of those laws. The United States has more than 5,300 amusement parks and facilities in more than 100 countries, according to the International Association of Amusement Parks and Attractions (IAAPA), a trade group. It should be noted that the IAAPA has a political action committee (PAC) that is used for lobbying state and federal legislators regarding laws that impact these amusement parks.

9. Do these suits raise other important legal or safety issues?

The problem when these lawsuits are settled for a confidential amount, then the real risks of amusement parks is never really known by the public. The amusement park industry is a multi-billion-dollar business with millions visiting the parks every year. In 2015, the biggest theme park by attendance was the Magic Kingdom at Walt Disney World Resort, hosting 20.49 million visitors in the year up 6 percent over 2014.

This is a very dangerous business because it deals with people's lives and safety, yet there is no consistent enforcement of regulations, no national standards and even some states have no regulations at all. The public needs to be more proactive in insisting on greater safety measures before the next tragic headline.

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